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TMI Blog2017 (2) TMI 1339X X X X Extracts X X X X X X X X Extracts X X X X ..... ersons, individuals, etc., in a time bound manner for maximisation of value of assets persons to promoted entrepreneurship etc. As stated above, the Learned Counsel for the Respondents not only denied the claims in question but also explained with cogent reasons as to how the Petitioner is un-justified in filing the present petition by invoking the jurisdiction of this Tribunal under IBC, 2016. It is not a fit case to initiate Insolvency Resolution Process as prayed for by the Petitioner. - CP (IB) NO. 9/9/HDB/2017 - - - Dated:- 21-2-2017 - MR. RAJESWARA RAO VITTANALA, J. For The Petitioner : A. Venkatesh and C. Tulasi Krishna For The Respondent : C.V. Narasimham, Avinash Desai, Alekhya Tadasina and Nikhil Khadkikar ORDER 1. The present Company Petition (referred to as Company petition hereunder) bearing No. CP(IB)/9/9/HDB/2017 is filed by Sh. K.K.V. Naga Prasad, an operational creditor, under Section 9 of the Insolvency and Bankruptcy Code, 2016, read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, by interalia seeking directions to put Lanco Infratech Limited (Referred to as Company hereunder) unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31.01.2014 Location Gurgaon Paid days 31 Monthly Emoluments Emoluments Entitlement Earnings Deductions Amount Basic 687500.00 687500.00 EE PF Contribution 780.00 House Rent Allowances 343750.00 343750.00 Mobile Bills 16632.00 Child Education Allowance 200.00 200.00 Income Tax 4064951 Attire Allowance 2500.00 2500.00 Location Allowance 206250.00 206250.00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Total Payable (E) = (A+B+C+D) 12222969.34 Net Amount payable to Employee = (E-F) 8140606.34 (d) The Petitioner has sent a demand notice/invoice dated 02.01.2017 under Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, to the Chairman of Company by requesting it to repay the amount due within 10 days from the receipt of this letter, failing which he informed that he would initiate a Corporate Insolvency Resolution process in respect of the Company. (e) In pursuance to the above notice, M/s Chandhiok Associates, Advocates on behalf of Company sent a reply dated 11.01.2017 by email to Mr. Deva Vrat Anand, Advocate for the Petitioner with a copy to the Petitioner by inter-alia stating that the contents in the Demand Notice was nothing but a cohesive means to harass and agonise the Company, and pressurize it to give into his unjust demands by threatening insolvency of Company. It is also stated that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts. The Company had already paid INR ₹ 5,00,000 to the Petitioner in January, 2015, and this fact was also not bought to the notice of the Tribunal. (d) It is not the case of the Petitioner that the Company is insolvent to pay the alleged claim in question, on the contrary that the petitioner himself was liable to pay ₹ 3,81,943/- to the Company. The petitioner, being a Senior Management employee and CEO of the Company, has enjoyed wide discretionary powers and those powers were misused by using Company policies. Except the Petitioner herein, no other creditor of the Company has made a demand on the Company, and approached the Tribunal. It is further stated that the petitioner was not interested for honest settlement of alleged claims, and in fact, the Petitioner was asked by the Company to come forward, and make full and honest declaration of actual leaves availed by the petitioner, and to settle the alleged claims. (e) The Tribunal cannot be misused to settle and determine the cases of disputed claims. Once a dispute is raised in respect of operational debt, the Tribunal does not any have jurisdiction to settle such disputes, which necessary should be settled by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rused all the pleadings along with material papers filed by the respective parties. 6. The Learned Counsel for the petitioner reiterated various averments made in the Company petition and subsequently filed written gist of arguments dated 13.02.2017 and his primary submissions are as under : (a) The petitioner was appointed as an employee to execute and manage the functioning of the Company. He was transferred to various inter-company transfers due to reorganisation of business of Company commencing from January, 23,2003 till his last day of service i.e., January, 31, 2014. (b) After pursuing the issue in question for more than 17 months, after the date of relieving from the Company, he received full and final settlement (FFS) by an e-mail dated 14.07.2015 through electronically generated document with the caption as SAP GENERATED DOCUMENT, NEEDS NO SIGNATURE . He stated that the total amount of ₹ 122,055,57.30/- subject to statutory deductions/taxes as on 31.01.2014, and it was not paid till date. The Petitioner relied upon SAP generated document, and it cannot be disputed at this stage, and the same will be against the doctrine of indoor management. (c) The Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny petition is maintainable as per law and facts and thus prayed that the Tribunal may be pleased to admit the case and initiate Insolvency process as prayed for. 7. Sh. C.V. Narsimham, the Learned Counsel for the Respondent, while reiterating various averments made in counter, has further submitted as under: (a) That the present Petition is liable to be rejected on the ground that the Company has already issued a notice of dispute vide letter dated 11.01.2017 to the Petitioner under Section 8(2) of the Code within a prescribed time frame by explaining as to why the Petitioner was not entitled for payment of any dues. The subject FFS was a disputed one, and it was not authenticated and unauthorised to issue. (b) The claim of the Petitioner for encashment of 199.5 unavailed leaves amounting to INR 91,43.749,34 is baseless and untenable as the Petitioner himself being a CEO was under a fiduciary duty to declare his leaves and then claim un-availed leaves. However, during the entire tenure of petitioner for about 9 years, not a single self- declaration of the leave was made by the Petitioner. If the leaves were declared, the HR department would have to input the availed leave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of Hon ble Principal Bench, NCLT in the case of Nikhil Mehta Sons (HUF) v. AMR Infrastructures Ltd. However, the case was instituted, under Section 7 of IBC, 2016, and the issues considered in the case were; who is Financial Creditor and what is financial debt. And several winding up petitions and Company Petitions No. 477 of 2014, 689, 691, 692,693, 694,695,700 etc were pending before the Hon ble High court of Delhi. The facts and issue raised in that case has no bearing in the present case. (f) The Learned Counsel for the Respondents, therefore, submits that petition is liable to be dismissed. 8. I have carefully considered all the above contentions of both the parties. 9.The Insolvency and Bankruptcy Code, 2016 was enacted by the Parliament in the 67th year of Republic of India and the main object of the Act is as follows: An Act to consolidate and amend the law relating to reorganisation and insolvency resolution of corporate persons, partnership firms and individuals in a time bound manner for maximisation of value of assets of such persons, to promote entrepreneurship, availability of credit and balance the interests of all the stakeholders including alter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re than 9 years in the Company as senior Executive i.e. from 19.11.2005 to 23.12.2013 and keeping quiet for a long time, make a demand basing on un-authentic and un-authorised FFS in question, is not at all tenable to invoke the provisions of IBC, which is meant for protection of bonafide stakeholders of a Company as per the objects of IBC as extracted above. The petitioner failed to show his bona fides to approach this Tribunal except technically contending that he has not received the notice of dispute in question from the Company before receipt of demand notice in question. 12. It is not in dispute that the resignation of the Petitioner was accepted on 23.12.2013. A sum of ₹ 5 lakhs was credited by the Company to the Applicant on 15.01.2015. The petitioner failed to explain suitably that FFS in question was an authenticated document. However, the Company suitably explained vide their responses dated 11.01.2017 and 23.01.17 proving that there was a clear dispute with regard to the claim in question and there are no dues from the Company to the Petitioner. The Petitioner kept quiet for a long period from 23.12.2013 i.e., from the date of resignation till January, 2017 and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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